The Developer’s Rights (or Lack Thereof) in the Face of Decision Maker Bias

You’ve got a great project and you’re ready to start the approval process. However, some community members are opposed to your project, and one or two of them have just been elected to the city council, after having run on a platform of unequivocal opposition to your project. What, if anything, can you do?

The first question to ask is, what kind of land use approvals are you seeking? If they are legislative approvals, such as a general plan amendment or a rezoning, then the answer is that there probably is nothing you can do about the apparent bias of the new city council members. Decisions by the Supreme Courts of both the United States and California have stressed the free speech rights of politicians who espouse the concerns of the electorate. Suppose the approvals sought aren’t legislative, but are, instead, administrative. Typically, administrative approvals are not issued by an elected body and include approvals such as subdivision maps, conditional use permits and variances. Here there is a possibility of relief, so long as you can allege “concrete facts” which demonstrate bias or an unacceptable probability of actual bias. A decision maker’s previously-voiced opposition to a project generally isn’t enough to justify his or her disqualification. Real examples of actions which demonstrate an appropriate probability of actual bias on the part of a decision maker include (i) writing an article objecting to a project while it is undergoing the approval process, (ii) having ex parte contacts with project opponents and failing to disclose those contacts, (iii) improperly appealing an action taken by a planning commission, and (iv) urinating on the property subject to the entitlement approvals at issue. (Yes, these are all real-life examples taken from the case law.)

Suppose that, like these examples above, you do have concrete facts sufficient to demonstrate a probability of actual bias. What should you do? The first thing to do is to ask for the decision maker’s recusal. You might waive your right to complain later if you fail to ask for the decision maker’s recusal if you know of the bias before the hearing on your project. If you learn of the bias after the hearing, you should ask for reconsideration based on the newly learned facts to again avoid any claim of waiver.

Suppose you convince a judge that you were the victim of bias, what happens then? As a practical matter, it depends on the provisions of the applicable municipal code. A typical land use approval situation is when a planning commission approves an administrative act, which is then appealed by a project opponent to the city council. A judge can’t set aside a city council’s grant of an appeal and then order the reinstatement of the planning commission’s approval. Instead, the judge must remand the appeal to the council with an order that the appeal be reconsidered without the biased council member being allowed to take part in the reconsideration.

Given the relatively high bar for demonstrating bias, the bottom line is that disqualification for bias in the land use approval process is the exception and not the rule. A developer should spend his or her time working for a political solution rather than hoping that a judge will salvage a project which has been unfairly denied its land use approvals.